United States District Court, E.D. Louisiana
ORDER AND REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE
the Court are New Orleans Harbor Police Officer Chris Clark
Jr.'s, the Board of Commissioners of the Port of New
Orleans's, and Lexington Insurance Company's
motions for summary judgment. For the following
reasons, Clark Jr.'s motion is denied, the Port's
motion is granted in part and denied in part, and
Lexington's motion is granted.
night of Clark Jr.'s graduation from college, his family
and friends took him out to dinner in New Orleans. Clark
Jr.'s family and friends took two cars to the restaurant.
they went to pay for parking at a parking lot on Poydras
Avenue, they did not notice that the parking machine did not
give change. As a result, they accidently paid more than they
intended for a single parking space. But rather than purchase
a parking slip for the other car, they parked both of the
cars next to each other in the lot and left the parking slip
on the dashboard of one of the cars. Clark Jr. left
his Harbor Police ID on the dashboard of the other car. Both
of the cars were booted when they returned.
Alfred Derischebourg was working as the parking lot's
“boot man” that evening. He booted the cars.
Then, when Clark Jr.'s family called to get the boots
removed, Derischebourg was dispatched to address the
situation. After Derischebourg arrived, he explained the
rules to Clark Jr. and Clark Jr.'s mother and quoted a
price for removing the boots. They refused to pay, and
Clark family called Derischebourg back to the parking lot
later in the evening. By that point, more of Clark Jr.'s
friends and family had gathered. One of those individuals was
David Cantrelle-a badge-toting deputy constable for the First
arrival, Derischebourg exited his car and began discussing
the matter with Clark Jr.'s mother. During that
conversation, Derischebourg got back in his pickup truck.
Clark Jr.'s friends and family-but not Clark
Jr.-surrounded the pickup truck. Clark Jr.'s aunt and
uncle stood in front, Clark's mother and Cantrelle next
to the driver's door, and Clark Jr.'s father
(“Clark Sr.”) behind.
parties disagree about what happened next. According to Clark
Jr., Derischebourg began to back up “a couple of feet -
four or five feet, maybe, ” in a “fast” and
“erratic” manner, R. Doc. No. 175-3, at 38,
forcing Clark Jr. and Cantrelle to remove him from the car
for the safety of everyone there. Clark Jr. claims his
intervention was provoked by seeing Derischebourg's
moving pickup truck hit Chris Clark Sr. R. Doc. No. 175-3, at
38. Meanwhile, according to Derischebourg, he merely shifted
his car from drive to park-causing the reversing lights to
temporarily go on- but his car did not move. (Clark Sr. later
reported to police that the car did not strike him. Instead,
Clark Sr. said that that he pushed himself away from the
vehicle when he saw the reversing lights go on. R. Doc. No.
175-5, at 5.)
all parties agree that Clark Jr.'s aunt screamed and
Cantrelle used force to remove Derischebourg from the car.
Clark Jr. ran over to help Cantrelle restrain Derischebourg.
They pinned Derischebourg to the ground and handcuffed him.
Derischebourg also claims that they punched him and held him
down while Derischebourg was assaulted by Clark Jr.'s
friends and family. Derischebourg's body camera recorded
video and audio from the incident, though the video camera
fell off of Derischebourg when he was removed from the car.
The camera landed face down, resulting in there only being an
audio recording of the takedown.
Orleans police arrived on the scene shortly thereafter. They
ordered Derischebourg released. After investigating, the
police issued summonses to Clark Jr., Cantrelle, as well as
some of Clark Jr.'s friends and family for simple
filed this civil case which alleges federal and state tort
claims against Clark Jr., the Port of New Orleans (Clark
Jr.'s employer), Cantrelle, the First City Constable
(Cantrelle's employer), and Clark Jr.'s friends and
family. Derischebourg further amended his case to raise a
claim against Lexington Insurance Company (the insurer for
Clark Jr.'s aunt and uncle) under the direct action
also filed a criminal complaint against Clark Jr., Cantrelle,
and Clark Jr.'s family and friends. This matter was
stayed during the pendency of the criminal proceedings. It
was then reopened after all of the defendants were found not
guilty of all charges in municipal court.
Jr., the Port, and Lexington Insurance Co. now move for
judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any
affidavits, the court determines that there is no genuine
dispute of material fact. See Fed. R. Civ. P. 56.
“[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the
basis for its motion and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The party seeking
summary judgment need not produce evidence negating the
existence of material fact, but need only point out the
absence of evidence supporting the other party's case.
Id.; Fontenot v. Upjohn Co., 780 F.2d 1190,
1195 (5th Cir. 1986).
the party seeking summary judgment carries its burden
pursuant to Rule 56, the nonmoving party must come forward
with specific facts showing that there is a genuine dispute
of material fact for trial. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The
showing of a genuine issue is not satisfied by creating
“‘some metaphysical doubt as to the material
facts, ' by ‘conclusory allegations, ' by
‘unsubstantiated assertions, ' or by only a
‘scintilla' of evidence.” Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(citations omitted). Instead, a genuine issue of material
fact exists when the “evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The party responding to the motion for
summary judgment may not rest upon the pleadings, but must
identify specific facts that establish a genuine issue.
Id. The nonmoving party's evidence, however,
“is to be believed, and all justifiable inferences are
to be drawn in [the nonmoving party's] favor.”
Id. at 255; see also Hunt v. Cromartie, 526
U.S. 541, 552 (1999).
Jr. moves for summary judgment on (1) his claim of qualified
immunity to plaintiff's federal and state constitutional
law claims and (2) his claim of discretionary immunity to the
state law tort claims. Clark Jr. also moves for summary
judgment on the merits of plaintiff's tort claims, but he
did not comply with the scheduling order requiring him to
discuss all proposed summary judgment issues at a status
though Clark Jr. was off-duty at the time he pinned and
cuffed Derischebourg, he is entitled to qualified immunity
insofar as his conduct did not “violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); see also
Legrand v. Gillman, 576 F. App'x 334, 335 n.1 (5th
Cir. 2014) (off-duty officers may raise qualified immunity
defense). When qualified immunity is properly applied,
“it protects all but the plainly incompetent or those
who knowingly violate the law.” Ashcroft v.
al-Kidd, 563 U.S. 731, 743 (2011) (internal quotation
marks omitted). “Once a defendant invokes qualified
immunity . . . the burden shifts to the plaintiff to
demonstrate the inapplicability of the defense.”
McCreary v. Richardson, 738 F.3d 651, 655 (5th Cir.
apply a two-part test when determining qualified immunity.
First, a court must decide whether the officer's conduct
violated a constitutional right. See Heaney v.
Roberts, 846 F.3d 795, 801 (5th Cir. 2017). Second, the
court must decide whether the constitutional right at issue
was clearly established at the time of the alleged violation.
Id. Derischebourg claims that Clark Jr. violated the
Fourth Amendment by unlawfully seizing Derischebourg and
using excessive force when doing so.
party disputes the constitutional principles underlying
Derischbourg's constitutional claims-the Fourth Amendment
right to be free from unlawful arrest and detention as well
as the Fourth Amendment right to be free from excessive force
during a seizure. Because neither party disputes the clarity
of the underlying Fourth Amendment rights, both the first and
the second prong of the qualified immunity analysis
“necessarily involves a reasonableness inquiry.”
all, Derischebourg needs to show that Clark Jr. acted
unreasonably to demonstrate a Fourth Amendment violation in
the first place. See, e.g., Heien v. North
Carolina, 134 S.Ct. 530, 536 (2014) (“As the text
indicates and we have repeatedly affirmed, the ultimate
touchstone of the Fourth Amendment is reasonableness.”
(internal quotation marks omitted)). Then, when determining
whether a constitutional right was clearly established-that
is, whether Clark Jr. could have reasonably believed that his
“conduct was not barred by law, ”
Heaney, 846 F.3d at 801-Derischebourg again has to
demonstrate that Clark Jr.'s actions were unreasonable.
instance, the reasonableness inquiry is “an objective
one.” Rowland v. Perry, 41 F.3d 167, 172 (4th
Cir. 1994) (Wilkinson, J.); see e.g.,
Harlow, 457 U.S. at 818 (qualified immunity inquiry
examines “objective reasonableness of an official's
conduct”); McCreary, 738 F.3d at 657
(“Fourth Amendment compliance is, as a general rule,
assessed based on objective reasonableness and not subjective
intent.”). “To gauge objective reasonableness, a
court examines only the actions at issue and measures them
against what a reasonable police officer would do under the
circumstances.” Rowland, 41 F.3d at 172.
“The relevant question . . . is whether a reasonable
officer could have believed” his actions “to be
lawful” under the Fourth Amendment “in light of
clearly established law and the information the . . .
officers possessed.” Anderson v. Creighton,
483 U.S. 635, 641 (1987).
light of the central role that reasonableness plays in the
qualified immunity inquiry, Clark Jr. focuses on the argument
that his reaction was reasonable in light of the information
he had at the time. Clark Jr. suggests that he had a
reasonable belief that Derischebourg's conduct
“posed a threat to the safety of the individuals in the
parking lot unless he was restrained.” R. Doc. No.
135-2, at 4.
Jr.'s argument requires the Court to credit Clark
Jr.'s account that he saw the car erratically
move “four or five feet” and hit his
father, R. Doc. No. 175-3, at 38, rather than
Derischebourg's account that the car did not move, R.
Doc. No. 175-2, at 163. However, this Court cannot simply
find Clark Jr.'s account more credible than
Derischebourg's on a motion for summary judgment.
See, e.g., Payne v. City of Olive Branch,
130 F. App'x 656, 660-61 (5th Cir. 2005). And there is
such a significant disparity between Clark Jr.'s account
that he observed the car move a number of feet in an
erratic fashion and hit his father, and
Derischebourg's account that the car did not move at all,
that this Court cannot simply treat both ...